Thoughts on Life, Love, Politics, Hypocrisy and Coming Out in Mid-Life

Thursday, April 26, 2018

Trump's Improper War on Blue States

Among the many threats that Der Trumpenführer directs at all kinds of targets - typically, those who reject his lies and/or refuse to embrace his racist agenda - is that federal funds will be withheld from blue states that voted against Trump in the presidential election and/or refuse to cooperate in Trump's effort to terrorize undocumented immigrants. The irony, of course, is that blue states contribute far more to the federal government that they receive back and, therefore, indirectly finance red states that are the states equivalents of the welfare queens constantly derided by right wing Republicans. The ongoing warfare between the White House and blue states such as California (with its voting record of late and Democrat led state government, Virginia could soon find itself a target of Trump's untethered wrath). In the eye of the storm is the always despicable Jeff Sessions, and man with a long documented history of racism and bigotry, who is acting with no statutory authority. A piece in the New York Times looks at this disturbing situation. Here are article excerpts:

In
the civil war now being waged in this country, the combatants are not the blue
and the gray of old. It’s the White House versus the blue states.

And
the weapons aren’t cannon balls but rather the threatened withholding of
federal money from “sanctuary” cities and states, the plan for the next census
that would have the effect of shrinking liberal states’ representation in
Congress, and the cap on tax deductions that will strike at residents of cities
and states where high tax rates support decent public services.

While
California is most prominently in the administration’s cross hairs . . . . the
free state of California is not the only target. Chilling headlines like a recent one in a local
newspaper in New Haven — “ICE Lies in Wait at Elm Street Courthouse” — are
appearing all over the country as federal agents stalk and capture undocumented
immigrants and leave the rest of us to shudder at tactics we used to ascribe to
countries we regarded with disdain.

Those
old enough to remember the Rehnquist federalism revolution of the 1990s and
early 2000s will recall how startling it was when Chief Justice William H.
Rehnquist’s long-sought majority began to rein in the federal government’s
authority over the states with an enthusiasm and to a degree not seen since the
early years of the New Deal.

The
federal government can’t “commandeer” the states to carry out its enforcement
objectives, Justice Sandra Day O’Connor wrote for the majority in a 1992 case, New York v. United States, invalidating a federal
plan to oblige the states to help dispose of radioactive waste. “Congress must
accord states the esteem due them as joint partners in a federal system,”
Justice Anthony M. Kennedy wrote in a 1999 case, Alden v. Maine, immunizing the states from suits for violations of
federal labor law.

[T]he
current reversal of polarity is head-snapping. The Trump administration is not
only commandeering local courthouses as convenient places to trap its prey, it
also seeks to punish cities and states that resist.

That
effort ran into a major roadblock last week in the form of a decision by the
federal appeals court in Chicago. The three-judge panel blocked the effort by
Attorney General Jeff Sessions to withhold millions of dollars in federal
law-enforcement grant money from cities and states that fail to give advance
notice to federal authorities when individuals who are “believed to be aliens”
are expected to be released from custody or deny federal agents access to jails
to meet with them . . .

[A]ll
three judges were Republican appointees, . . . . Attorney General Sessions, Judge Rovner wrote,
“repeatedly characterizes the issue as whether localities can be allowed to
thwart federal law enforcement. That is a red herring. First, nothing in this
case involves any affirmative interference with federal law enforcement
at all, nor is there any interference whatsoever with federal immigration
authorities. The only conduct at issue here is the refusal of the local law
enforcement to aid in civil immigration enforcement . . . .

The
judge added, “The choice as to how to devote law enforcement resources —
including whether or not to use such resources to aid in federal immigration
efforts — would traditionally be one left to state and local authorities.”

Congress
granted the department no such authority, the appeals court concluded, nor can
the statute be interpreted as bestowing it inherently. To quote Judge Rovner:
“We are faced, then, with conditions on the receipt of critical law enforcement
funds that have been imposed by the attorney general without any authority in a
manner that usurps the authority of Congress — made more egregious because
Congress itself has repeatedly refused to pass bills with such restrictions.”

Judge
Rovner wrote . . . The founders of our country well understood that the
concentration of power threatens individual liberty and established a bulwark
against such tyranny by creating a separation of powers among the branches of
government. If the executive branch can determine policy, and then use the power
of the purse to mandate compliance with that policy by the state and local
governments, all without the authorization or even acquiescence of elected
legislators, that check against tyranny is forsaken.”

And
if that wasn’t strong enough medicine, her opinion includes this observation:
“It falls to us, the judiciary, as the remaining branch of the government, to
act as a check on such usurpation of power.”

Nor
is there middle ground in another front in the new civil war: the Trump
administration’s decision, announced on March 26, to add a citizenship question
to the 2020 census. California, New York, the N.A.A.C.P., and others promptly
filed lawsuits.

The
legal complaints assert that requiring people to reveal their citizenship
status will predictably depress participation, thereby preventing the
government from obeying the constitutional command to conduct an “actual
enumeration” every 10 years. . . . . In other words, while there is little
chance that the citizenship question will produce a more accurate census, there
is every chance that it will bring about a shift in the national balance of
power.

New
York, heading a plaintiff coalition of 16 states and several cities, asserts in
its complaint that “a person-by-person citizenship demand that leads to a
systematic undercount of minority populations across the United States will
impair fair representation of those groups and the states in which they live.”

“A
state of war is not a blank check for the president,” Justice O’Connor famously
wrote in one of the cases that reached the court during
that period. That goes for a civil war, too.

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Out gay attorney in a committed relationship; formerly married and father of three wonderful children; sometime activist and political/news junkie; survived coming out in mid-life and hope to share my experiences and reflections with others.
In the career/professional realm, I am affiliated with Caplan & Associates PC where I practice in the areas of real estate, estate planning (Wills, Trusts, Advanced Medical Directives, Financial Powers of Attorney, Durable Medical Powers of Attorney); business law and commercial transactions; formation of corporations and limited liability companies and legal services to the gay, lesbian and transgender community, including birth certificate amendment.

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